I have not yet had a chance to fully study the Court's opinion in Boumediene v. Bush. But I will note one very important aspect of this case that differs from the Court's previous war on terror decisions rebuking the Bush administration. In earlier cases such as Rasul v. Bush, Hamdi v. Rumsfeld, and Hamdan v. Rumsfeld, the Court invalidated unilateral actions taken the by the executive, repudiating the Bush Administration's ultra-expansive interpretation of wartime executive power. However, Hamdan specifically left open the possibility that the administration's Guantanamo policies might be constitutional if authorized by congressional legislation. The Republican Congress (for the most part) provided that authorization in the Military Commissions Act of 2006.
In Boumediene, the Court challenges congressional power as well as the executive. It strikes down as unconstitutional several provisions of the Detainee Treatment Act of 2005 and the MCA. This is a nearly unprecedented situation where the Court rejected an important assertion of wartime power backed by both of the other branches of government. To my knowledge, virtually every previous case in which the Court ruled an important wartime policy unconstitutional was one where the policy in question was adopted by the executive acting alone.
As a political matter, the majority justices might might well have reasoned that they could avoid a dangerous interbranch confrontation because the Republican Congress which enacted the DTA and MCA is now gone, and the Bush Administration has only a few months remaining. But even a Democratic administration and Congress might be reluctant to give terrorist detainees as much protection as Boumediene requires.
The fact that the decision challenges congressional power as well as executive power doesn't mean that it is necessarily wrong. On that question, I am divided in my own mind. The difficult question is whether habeas corpus applies to enemy combatants seized in operations abroad (I don't doubt that the Bush Administration was wrong to assert that it doesn't apply to US citizens accused of terrorist acts and captured in the US).
Importantly, the Court does leave Congress a way out. If it wants to, Congress could still strip detainees of the protection they get under Boumediene by enacting a statute suspending the writ of habeas corpus under the Suspension Clause. With a Democratic Congress, I suspect that we might get a new detainee law that suspends the writ for certain categories of terror detainees, but also perhaps gives them more procedural rights than they got under the Republican-enacted MCA. For a variety of reasons, I doubt that the Democrats will be willing to take the risk of allowing the detainees to retain full habeas rights. If they don't act and a terrorist released as a result of a habeas petition commits some atrocity, the Dems will take a predictable political hit. Especially if Obama wins the presidential election, expect the Democrats to enact some sort of partial suspension of habeas corpus, combined with new, but limited statutory procedural rights for detainees. At least that is my tentative prediction.
UPDATE: Some commenters cite Ex Parte Milligan as an example of a case where the Court invalidated a joint congressional-executive wartime policy. In a narrow technical sense, they have a point. However, it is important to recognize that Milligan was decided only after the war in question (the Civil War) was over. The Court would have been much more reluctant to take on both of the other branches if the war had still been ongoing (as of course it still is in the Boumediene case).
UPDATE #2: As Marty Lederman points out in an e-mail to me, the Milligan decision actually held that the president lacked congressional authorization for his actions in so far as the Habeas Corpus Act of 1863 forbade him to subject civilians to military jurisdiction in states where the civilian courts continued to operate. The Court also ruled that, in some situations, even Congress would lack the power to subject civilians to military trials; but it emphasized that Congress had not taken any such action in the case before it. Be that as it may, it is significant that even in Milligan, the Court did not repudiate both of the other branches of the federal government head on, in the way it has now done in Boumediene.
Related Posts (on one page):
- Could Congress Suspend the Writ of Habeas Corpus in the War on Terror?
- Can Congress Suspend Habeas in Guantanamo?
- It's Unlikely, But Worth Noting:
- Boumediene, Executive Power, and Congressional Power:
- Key Quotes from Boumediene v. Bush:
Ex Parte Milligan was such a case.
Though I doubt you had such issues in mind, the original ruling in the paper money case also struck down such a policy.
it wants to, Congress could still strip detainees of the protection they get under Boumediene by enacting a statute suspending the writ of habeas corpus under the Suspension Clause.
Is there an "[i]nvasion" that "the public Safety may require it"? How does Congress cross the invasion hurdle?
Obama's rhetoric is not unique, and seems to be a general Democratic talking point. I just don't see how the Dems can take office and then officially suspend habeas. Suspending is the opposite of restoring.
Decided after the war was over.
The Court based its decision in that case specifically on the ground that it was striking down a unilateral exercise of executive power that circumvented Congress' Taft-Hartley Act.
"Restoring" habeas could mean a lot of things. In particular, restoring it generally is compatible with partially suspending it for certain narrowly defined categories of detainees.
I completely disagree with your prediction of Democrats' somehow partially suspending habeas corpus. Can you please cite any example of prominent Democrats floating this idea? Maybe I am naive, but I think that Democrats really do believe, as I do, that habeas corpus should be available to the detainees in the US custody. Of course, there's a remote chance of your hypothetical happening(a detainee is released and commits an atrocity), but it doesn't mean that Democrats would be willing to partially suspend habeas corpus. It is ironic that the party that generally believes in government more than the other party does is the main protector of civil liberties. Republicans of 2000s bear little resemblance to republicans of 1960s and 1970s.
My unstated point was the framework that the Court laid out in Youngstown Steel (the executive's power is greatest when working in concert with Congress and lowest when working in direct contravention of Congress) wasn't followed here.
But those are technically the only categories where it needs to be restored. You can't restore it and then take an action that completely undoes what you just did.
But those are technically the only categories where it needs to be restored. You can't restore it and then take an action that completely undoes what you just did.
No, the Bush Administration took the position that habeas did not apply even to US citizen War on Terror suspects captured in the US. A Dem administration and Congress could "restore" it with respect to US citizens, while partially suspending it as applied to foreign enemy combatants taken abroad (or some subset thereof).
If Congress and the President do suspend the writ to the Guantanamo detainees as a whole (or just certain classes of detainees), it seems we then run into two problems:
First, writ can be suspended only in cases of rebellion or invasion. It's hard to argue that we are fighting, in the "war on terror," a rebellion or invasion. I suppose if one really wanted to reach a contrary result, one could seize on the language that the writ can be suspended when "the public Safety may require it," but this language pretty clearly defines only a subset of "Cases of Rebellion or Invasion." Do you think such a suspension would not be quickly be declared unconstitutional?
Second, let's assume that, despite problems with the constitutional text, the writ can be suspended here. It seems that the Fifth Amendment's Due Process Clause, which contains some equal protection guarantee, could pose a problem to suspending the writ to some classes of persons but not others. I'm no expert in what differences, if any, there are between equal protection guaranteed under the Fourteenth Amendment and the Fifth, though. (Bolling v. Sharpe is pretty cryptic.) It would seem that, at least under the Fourteenth, the suspension would burden the fundamental right of habeas corpus and thus be in danger of being struck down under strict scrutiny, even though the classification drawn between detainees with and without habeas rights might otherwise meet rational basis review. Do you think such a discriminatory suspension would be constitutional?
.
Congress KNEW it had a duty to compose Military Commissions Law (i.e., that the Trial Commission unilaterally-constituted by the executive was unconstitutional), and didn't act until after the Hamdan decision. Then, it took the "easy" route of adopting the MCA language provided to it by the administration, instead of engaging in a serious and principled debate. Pure politics - and the result should be an embarrassment. Predictably, Congress is blaming the administration.
Ilya, do you have a cite for this? Because the Hamdi Court recognized that Hamdi's right to habeas corpus was not disputed by the government ("the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. . . . Thus, it is undisputed that Hamdi was properly before an Article III court to challenge his detention under 28 U.S.C. 2241.").
Pretty much true here, unless one adopts the neo-con view that we're fighting The Forever War. Good book, bad foreign policy.
What does it take before the court accepts that the definition of enemy soldiers being in uniform as opposed to enemy combatants not being in uniform making a difference. As I recall we never did sign the last part of the GC but that does not seem to matter to the liberal justices. Talk about making laws on the fly from the bench!
Ilya, do you have a cite for this? Because the Hamdi Court recognized that Hamdi's right to habeas corpus was not disputed by the government ("the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. . . . Thus, it is undisputed that Hamdi was properly before an Article III court to challenge his detention under 28 U.S.C. 2241.").
In Padilla and Hamdi, the administration claimed that they could indefinitely detain without trial even US citizens held in the US if they were "enemy combatants." In practice, that means denial of habeas corpus. These administration claims were the central issues litigated in Hamdi.
Which is why declarations of war would have been appropriate in both the Afghanistan and Iraq "conflicts." An existence of a state of war triggers many other provisions of constitutional and statutory law, and we should strive toward clarity in defining the starting and ending points of a war.
That is not to say that we need a declaration of war in a purely defensive action -- at least not until there is time for Congress to convene and make such a declaration, or when it would be inappropriate to make a declaration fo war -- for example, Desert Shield before it turned into Desert Storm. Those situations are different. But it seems to me that we have somehow moved to a point in which a formal declaration of war is considered unsavory, such that we're unwilling to do it under any circumstances. That's a mistake, and it's a mistake that causes major problems.
A state of war can exist without a formal declaration of war. See, e.g., the Prize cases.
Also, it is worth recalling that in prior detainee cases the Court has taken care to identify these individuals as wartime detainees from the war in Afghanistan, not the war on terror that the Bush Administration has been talking about.
Can we declare war on al-Qaeda? Declarations of war have always been made against sovereigns, not stateless entities. If we do, have we then limited our actions against terrorists who we cannot show are members of al-Qaeda?
And more importantly, can al-Qaeda challenge a declaration of war in US courts?
I was referring to the political logic of the Democrats and their claims that they want to "restore" habeas, not to the Court's logic in its decisions on the Gitmo detainees.
First, the Court did NOT say that the "war-like emergency" is over. Second, unlike the Confederacy in 1865 (a year before Milligan), Al Qaeda and its allies have not surrendered nor have they been completely destroyed. Therefore, its pretty obvious that the war is still ongoing in a way that the Civil War by 1866 (the year of Milligan) was not.
I have no idea what this has to do with Gitmo. As far as I know, captives in Iraq are kept there.
As for the mission being accomplished, at this point nobody, Bush and Cheney included, has any idea what the "mission" is. One day it was removing Saddam Hussein, the next it's bringing democracy to Iraq, the next it's something else altogether.
In any case, my ultimate point is that there is no war against "terror". There are only terrorists to catch.
1. Deport Al-Marri, and
2. Transfer some of the remaining Gitmo Detainees to a S.C. Naval Brig, leaving Gitmo detainee free, and
3. Release a good share of the remaining Gitmo Detainees to their native countries, on the grounds that their involvement was minor, or that the habeas cases for them was weak (some may face additional legal or extra-legal proceedings upon their arrival home), and
4. Litigate the remaining habeas cases on the merits in the federal courts, winning many, but not all of them. I suspect that a lot of the losses (maybe even a majority of remaining cases) will reclassify defendants as POWs rather the enemy combatants, thus giving them better treatment but not releasing them, and
5. Try a handful of detainees who have not have military commission proceedings completed before courts-martial or in the civilian criminal courts.
I also suspect that a handful of detainees will be sentenced to long military detention or to execution (which may well be carried out) during the current administration, upon confessions from detainees seeking martyrdom. Obama will probably not set aside those determinations without requests to do so from the convicted commission defendants themselves. KSM in particular has a good chance of being executed before Obama takes office.
The Court would be more than happy to receive that case, since it would give them ultimate control at the expense of all other branches of government. They would absolutely take that case and al-Qaeda would definitely win it. Kennedy would write the opinion. Maybe he'd use his "sweet mystery of life" phrase again. As he listens to Americans complaining on his way home, he'd berate us, "Down, peasants!"
Sadly, of course, Southern terrorists took up the war again shortly after Milligan was decided.
Didn't we declare war on the Barbary pirates?
A fine sentiment, but that's not what the Congress decided when it passed the AUMF (2001).
A fine sentiment, but that's not what the Congress decided when it passed the AUMF (2001).
The next step for the liberal terrorist-defending activists will then to get the Court to declare the AUMF unconstitional. It's a double-whammy: declare that there's no war on terror, so all the terrorists are freed. And also, it means the war was illegal, so Bush can be impeached!
The Court will go along with it because anything that increases its power is good to them.
Does anyone else think it a little odd that Scalia (of all people!) should write about "time-honored legal principle[s]" which are "vital to our constitutional Republic"? Perhaps Justice Scalia needs to be reminded that he abandoned the time-honored legal principle of limited government in the Raich decision. Perhaps if the majority in today's opinion had used the magic words "commerce clause" and found some tenuous and specious way to link it to the situation at Guantanamo, Scalia would have joined the opinion.
As I wrote back in December 2001 in my newspaper column:
"The court said, among other things, 'The right to jury trial and the other constitutional rights of an accused individual are too fundamental to be sacrificed merely through a reasonable fear of military assault.'
"And the justices made it pretty damn clear that when they talked about a 'military assault,' they didn't mean some vague threat in the indefinite future. They meant the civil courts should be left alone, even in a military emergency, unless the enemy had landed or the troop transports were standing offshore.
"And, in a remark that goes right to the point of the current discussion, it said, 'From time immemorial despots have used real or imagined threats to the public welfare as an excuse for needlessly abrogating human rights.'
"And for those who have suggested that only citizens have constitutional rights through the civil courts or that the Territorial precedent somehow doesn't apply, Black wrote, 'Civilians in Hawaii are entitled to the constitutional guarantees of a fair trial to the same extent as those who live in any other part of our country.'
"The court also referred back to a 1932 case (Sterling v. Constantin), which had ruled that 'the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.' "
Guantanamo is "part of our country."
No, but even if we had, the "Barbary Pirates" were actually semi-autonomous states (or tribes) within the Ottoman Empire with a legally recognized status. The Pashaw of Tripoli, the recognized ruler of Tripoli (we had a consulate there), did declare war on the US.
That is simply a head shaking, amazing statement.
Article I, Sec 8, Clause 11 states: "Congress shall have Power to...Make Rules for Captures on Land and Water."
Kennedy has now "switched off" Article I, Sec 8, Clause 11, moved this provision to Article III and replaced "Congress" with "the Supreme Court."
Article II, Sec 2, Clause 1 states: "The President shall be Commander in Chief of the Army and Navy of the United States.
Kennedy has now "switched on" a new clause to this provision, so it now reads: ""The President shall be Commander in Chief of the Army and Navy of the United States, except that the Supreme Court may define who is a Capture, whether the Capture may be detained and for how long the Capture may be detained."
The unmitigated gall of Kennedy accusing the elected branches of switching on and off the Constitution to suit their whims is something to behold.
For those of you who missed out on personally observing the New Deal, Warren and Burger Courts actually write entire provisions out of the Constitution, you are now witnessing a real live example of "living constitutionalism" in all its glory.
The September 2001 AUMF does NOT declare war on "terror" or anything like that. It authorizes the use of military force against those who planned or carried out the September 11 attacks (paraphrase, of course).
I view Sen. McCain's promises to close Gitmo as more or less equivalent to president Bush's suggestions, pre-Hamdan, that he was going to close it if the Supreme Court ruled against him.
Yeah, if something like this
happened under a Democratic president we'd never hear the end of it.
The administration has said that the people in Gitmo are "enemy combatants", and so they fall under military law but not under Geneva - is that right? Is that argument sound? (I'm, obviously, not a lawyer).
It seems like the Justices didn't necessarily disagree, but said that the provisions provided this third group (combatants) didn't pass muster... is that an accurate statement, or is there more to it?
No, the decision today does not directly relate to "captures on land and water", but only to how those who are captured may be detained *after* they have been captured.
Some thoughts on Boumedienne and Munaf
By Benjamin G. Davis
I. Boumedienne
A. Boumedienne majority (Kennedy, Stevens, Ginsburg, Souter, Breyer)
The willingness of the Majority to get past the forms that so hung up the lawyers who tried to put in place these horrendous procedures points out the weakness of the formalist analyst of those lawyers. Their analysis "knows the price of everything but the value of nothing". The majority understands just what is at stake.
The folks who thought 1) lets put people in Gitmo 2) lets put together a kangaroo court system under the president's authority, 3) let's put one through under the Congressional authority because of Hamdan etc - are rebuked.
The quote I love is at page 56
(“Liberty may
be violated either by arbitrary imprisonment without law
or the appearance of law, or by a lawful magistrate for an
unlawful reason”). (page 56)
Rejecting the dejure sovereignty formalism and accepting a defacto sovereignty analysis for habeas corpus review is vital in a messy world in a much messier war setting. That means that the kind of hiding people in black sites and other things is more likely to be reached than if that had not occurred. The shell games of extraordinary renditions to Mauritania, Bagram, Poland, Eastern Europe, American ships etc by the US government is now open on pragmatic grounds to potential habeas corpus review. That pragmatism permits the judicial branch to do its role in our system as a coequal branch of government to check the Executive and the Legislative when they cede to panic and improvisation as they have done in the detainee situations over the past six to seven years.
This is what happens when a government throws out 60 years of experience using awful analysis by clever by half lawyers - they get slapped down each time because their analyses simply do not pass a common sense standard.
That the court goes beyond its habeas corpus decision to look on the adequacy of the kangaroo processes at Gitmo is extraordinary and demonstrates (to me at least) the Court's understanding that something very fundamental is at stake in this case about what the United States is about.
When a state holds someone incognito (and the court knows about the torture though it does not see the need to get there - there is a warning in the words of limitation on issues of confinement and treatment) like this, a reasonable court will react like this. When you disappear people, a reasonable court will react like this.
What the Yoo's, Goldsmith's, Addington's, Bradbury's, Delahunty's, Bybee's, General Miller's, National Security Principals, Mukasey's, Gang of Eight types, Gonzales', the Lindsay Grahams and the compromising McCain's and Warner's, the prognosticators in favor of a National Security Court, and all the rest of that ilk need to keep in mind is the end of Kennedy's majority opinion at pages 68-70
"In considering both the procedural and substantive
standards used to impose detention to prevent acts of
terrorism, proper deference must be accorded to the political branches. See United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320 (1936). Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day
with briefings that may describe new and serious threats
to our Nation and its people. The law must accord the
Executive substantial authority to apprehend and detain
those who pose a real danger to our security.
Officials charged with daily operational responsibility
for our security may consider a judicial discourse on the
history of the Habeas Corpus Act of 1679 and like matters
to be far removed from the Nation’s present, urgent concerns.
Established legal doctrine, however, must be consulted
for its teaching. Remote in time it may be; irrelevant
to the present it is not. Security depends upon a
sophisticated intelligence apparatus and the ability of our
Armed Forces to act and to interdict. There are further
considerations, however. Security subsists, too, in fidelity
to freedom’s first principles. Chief among these are free
dom from arbitrary and unlawful restraint and the personal
liberty that is secured by adherence to the separation
of powers. It is from these principles that the judicial
authority to consider petitions for habeas corpus relief
derives.
Our opinion does not undermine the Executive’s powers
as Commander in Chief. On the contrary, the exercise of
those powers is vindicated, not eroded, when confirmed by
the Judicial Branch. Within the Constitution’s separation-
of-powers structure, few exercises of judicial power
are as legitimate or as necessary as the responsibility to
hear challenges to the authority of the Executive to imprison
a person. Some of these petitioners have been in
custody for six years with no definitive judicial determination
as to the legality of their detention. Their access to
the writ is a necessity to determine the lawfulness of their
status, even if, in the end, they do not obtain the relief
they seek.
Because our Nation’s past military conflicts have been of
limited duration, it has been possible to leave the outer
boundaries of war powers undefined. If, as some fear,
terrorism continues to pose dangerous threats to us for
years to come, the Court might not have this luxury. This
result is not inevitable, however. The political branches,
consistent with their independent obligations to interpret
and uphold the Constitution, can engage in a genuine
debate about how best to preserve constitutional values
while protecting the Nation from terrorism. Cf. Hamdan,
548 U. S., at 636 (BREYER, J., concurring) (“[J]udicial
insistence upon that consultation does not weaken our
Nation’s ability to deal with danger. To the contrary, that
insistence strengthens the Nation’s ability to determine—
through democratic means—how best to do so”).
It bears repeating that our opinion does not address the
content of the law that governs petitioners’ detention.
That is a matter yet to be determined. We hold that peti
tioners may invoke the fundamental procedural protections
of habeas corpus. The laws and Constitution are
designed to survive, and remain in force, in extraordinary
times. Liberty and security can be reconciled; and in our
system they are reconciled within the framework of the
law. The Framers decided that habeas corpus, a right of
first importance, must be a part of that framework, a part
of that law.
The determination by the Court of Appeals that the
Suspension Clause and its protections are inapplicable to
petitioners was in error. The judgment of the Court of
Appeals is reversed. The cases are remanded to the Court
of Appeals with instructions that it remand the cases to
the District Court for proceedings consistent with this
opinion."
This as much as saying what Jackson said in 1945.
“The ultimate principle is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty. If you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organized to convict. I am not arguing against bringing those accused of war-crimes to trial. I am pointing out hazards that attend such use of the judicial process - risk on the one hand that the decision that most of the world thinks should be made may not be justified as a judicial finding, even if perfectly justified as a political policy; and the alternative risk of damage to the future credit of judicial proceedings by manipulations of trial personnel or procedure temporarily to invest with judicial character what is in fact a political decision.”
Grabbing people willy-nilly, torturing them, and creating ersatz processes to cover all that up and convict - to commit state murder or indefinite incarceration - that is the province of the Soviet law we fought a Cold War to combat. That is not the province of an Anglo-Saxon tradition which all Americans should share.
With this decision, the court avoids a Korematsu moment and seeks to have the United States reconnect with what is so basic in us.
Refluat Stercus!
On sovereignty, I think the sense that the majority is taking is a recognition that dejure sovereignty is not enough and that defacto sovereignty should be a permitted basis for the Constitution running outside the United States. The court recognizes the prudential concerns, but the essence seems to be functional - as the Court states in the majority. Put another way, if the Executive is going to be running around the world doing things then the Constitution may permit the Court as a coequal branch to allow challenges to those actions. The Court has to take into account the complexities that surround such a habeas corpus analysis, but in many ways what the court is doing is recognizing that to the extent the Executive and Legislative are going to take on an unending internationalized role, then the Court has to accept a role in being a place where policing of those actions occurs.
I would suspect the willingness of the Court to do this comes with its increasing frustration with the grabs for power of the Executive in this war. The persnickety analysis of lawyers who do not appreciate the grandeur of the law and the rule of law I suspect is part of the frustration. The willingness of the majority to step away from the incomplete 1789 habeas records, to look at what happened in other places post 1789, and to synthesize from these principles the way it is going to operate now is hugely significant.
I was very much struck by how Somersett's case about an alien slave, and Brown even came in, also the disdain for Dred Scott and the interpretation of the Insular cases (Pedro Malavet has some interesting thoughts on those cases).
It is about pragmatism to avoid the Executive to be able to abuse its power. It is similar to the reason the Geneva Conventions are written in general terms, so that persons can not torture people by saying "that method was not on the list". The court gets the essence of the need in a democratic society for the Executive and Legislative to confront some type of check. Why? Because for seven years the Executive and Legislative have demonstrated that they are unwilling to act in a manner consistent with the good faith that is the predicate for the kind of judicial deference those in the minority would prefer.
B. Souter's concurrence points out the essence of what is going on here
“After six years of sustained executive detentions
in Guantanamo, subject to habeas jurisdiction but
without any actual habeas scrutiny, today’s decision is no
judicial victory, but an act of perseverance in trying to
make habeas review, and the obligation of the courts to
provide it, mean something of value both to prisoners and
to the Nation. See ante, at 69. “
It is simply a rejection of the kind of mechanistic deference of Scalia and Roberts to the Executive. It is obvious that the Executive can only be entitled to such deference if its actions are consistent with good faith respect for law. The ersatz processes based on ersatz legal analysis have come home to roost!
C. Roberts dissent – joined by Scalia, Alito and Thomas
Roberts does get it to some extent when he writes.
"One cannot help but think, after surveying the modest practical results of the
majority’s ambitious opinion, that this decision is not
really about the detainees at all, but about control of
federal policy regarding enemy combatants."
The Executive and Legislature having made such a hash of federal policy regarding enemy combatants over the past seven years, the Judiciary is forced to step in. And this hash happened because the Executive first stepped away from 60 years of US experience and then after its panic and improvisation, got the Legislature to go along.
That's the rub the minority is feeling and it is good, because we have had enough of improvisation in this arena that has so hurt the United States standing in the world and United States security.
Two things that are a problem with Roberts dissent.
At 10-11
"The majority insists that even if “the CSRTs satisf[ied]
due process standards,” full habeas review would still be
necessary, because habeas is a collateral remedy available
even to prisoners “detained pursuant to the most rigorous
proceedings imaginable.” Ante, at 55, 56. This comment
makes sense only if the CSRTs are incorrectly viewed as a
method used by the Executive for determining the prisoners’
status, and not as themselves part of the collateral
review to test the validity of that determination. See
Gusik, 340 U. S., at 132. The majority can deprecate the
importance of the CSRTs only by treating them as something
they are not.
The use of a military tribunal such as the CSRTs to
review the aliens’ detention should be familiar to this
Court in light of the Hamdi plurality, which said that the
due process rights enjoyed by American citizens detained
as enemy combatants could be vindicated “by an appropriately
authorized and properly constituted military tribunal.”
542 U. S., at 538. The DTA represents Congress’
considered attempt to provide the accused alien combatants
detained at Guantanamo a constitutionally adequate
opportunity to contest their detentions before just such a
tribunal."
At 13,
"If nothing else, it is
plain from the design of the DTA that Congress, the
President, and this Nation’s military leaders have made a
good-faith effort to follow our precedent."
I think the majority opinion recognizes the possibility of military tribunals. The history of them was described at length in Hamdan as having been used 1) in occupied lands and 2) when the courts (i.e. South in the Civil War) were not available. The Quirin precedent I suspect is very troubling for the Court to consider that a reasonable procedure under today's standards.
What the majority is doing is basically not acknowledging that the CSRT are "military tribunals." In that sense, the majority is seeing them as emanations from the Executive that are unfit for the label of military tribunal. The majority is looking at the form and substance of the process and type of review put in place by the DTA and is simply rejecting it. This again is consistent with Jackson's comment in 1945 about the need to respect judicial forms. Roberts is a majoritarian heat of the moment deference type it seems to me. Just because a bad law is put in place by Congress does not mean that the Court is to roll over. The Court can see what the DTA was really about as I hope it also sees with the MCA and can decide these do not fit with the forms of judicial process required under our Constitution.
It is this weakness in the understanding of Roberts of what the Constitutional role of the Court is as a coequal branch of government that will be with the Court for years to come. It is ultimately a form of timidity by the dissenters in the face of Executive power that is really quite disappointing. It is an approach that is uneasy with recognizing rights of the social outcast preferring the acceptance and bonhomie of the socially acceptable prejudices of the moment.
Roberts gets it wrong again later when he writes.
“Not the Great Writ, whose majesty is
hardly enhanced by its extension to a jurisdictionally
quirky outpost, with no tangible benefit to anyone. Not the
rule of law, unless by that is meant the rule of lawyers,
who will now arguably have a greater role than military
and intelligence officials in shaping policy for alien enemy
combatants. And certainly not the American people, who
today lose a bit more control over the conduct of this Nation’s
foreign policy to unelected, politically unaccountable
judges. “
The problem that Roberts has is the problem of the formalist. He is walking through the CSRT procedures and attempting to show that the CSRT is an “oh so adequate” set of procedures.
He also appeals to our jingoism by attempting to suggest that the process here given to a "noncitizen" will be greater than that for a "citizen". (I can't wait to see the Congressional types puffing that up in the anti-foreigner environment in which we live.)
Roberts legal weakness is simply in his being so enamored of the formalism of the words of the DTA. It is untidy for him for the Court to have thrown such a spanner in this well oiled process of CSRT and Article III review. But, the important thing the majority understands is that this procedure was not created to make a search for the truth. Rather, the procedure was put in place to make a search for the "truthiness" of the combatant status argument of the government in holding these people and treating them this way.
Roberts makes much of things that go on with regard to remand etc in the courts, but he fails to also note that the remanding to be done in this setting is to CSRT. Similarly with the possibility of release he is basically saying, trust in the good faith of all involved. I could trust in a court below, but I can not trust in the "truthiness" of a new CSRT court below.
The point here is that the majority shows skepticism to the pious formal words of the statute and looks at whether substantive due process is possible in the two-step system of the DTA.
I think the majority simply understands that the objective of the two-step system of the DTA is to assure people are held (truthiness) whether or not in fact they should be held (truth). And that is not good enough for the majority.
Roberts is willing to go along with the elaborate charade of the DTA rules showing a timidity in the face of a most dubious statute put in place in time of war. That may just be a sign of his immaturity, his lack of experience of war, or some flaw in his learning in that he never had to suffer on his way up. Be that as it may, he misses the essence of what was going on at Runnymede.
D. On Scalia's dissent, the essence that he does understand is:
"The gap between
rationale and rule leads me to conclude that the
Court’s ultimate, unexpressed goal is to preserve the
power to review the confinement of enemy prisoners held
by the Executive anywhere in the world. The “functional”
test usefully evades the precedential landmine of Eisentrager
but is so inherently subjective that it clears a wide
path for the Court to traverse in the years to come."
I think that Scalia is absolutely right that the threat of that happening is present in the majority opinon. However, I read the majority as saying the reason for that threat is because of the profound departures that the administration has taken in the present war/armed conflict/pick your word in the manner in which the US has treated detainees.
The majority has looked at habeas and seen that it can be applied practically at Gitmo to these non-citizens being held. Scalia himself recognizes that habeas has been found to apply to US citizens abroad in a manner that is a departure from the English practice. Scalia just does not like that flexibility being applied to these non-citizens abroad. The majority does.
Scalia waving of the flag of the 400 000 POW's held in WWII misses the point that these persons had POW status as opposed to these enemy combatants who are being denied (in error) any status under the Geneva Conventions.
Second, in Johnson v Eisentrager where these persons were held in Landsberg Prison, after a conviction by a properly constituted military commission in China, there is no hint at any step of the process of the kind of horrendous detainee treatment that permeates any question concerning detainee treatment in the War on Terror. (In fact, looking at Quirin (also), the key thing there is that there was no hint of horrendous detainee treatment that permeates the detainee treatment in the War on Terror.) If at Landsberg prison it was reported that those detainees were being subject to the kind of torture that we regularly hear about with regard to Gitmo and other places in the war on terror, I am not as sanguine as Scalia in thinking that the US court would not have entertained those cases.
Third, the fact that some detainees who have been released have joined for the first time or rejoined the enemy leaves to the side the specific issue of on what basis are we holding each of these detainees. I understand that hundreds of detainees (500 detainees) have been released. The number of 30 given by Scalia as having joined or rejoined the battle tells us nothing.
We should remember in the Civil War there were southern soldiers paroled on their promise not to take up arms again who went back and fought. When it got too bad in terms of those taking up arms again in dishonor, parole was ended (that led to Andersonville - more on that someday). But the ending of parole meant they would be held to the end of hostilities. Similarly, if we are having problems with numbers released and we consider they rejoined the battle (so should not have been released), the answer is in holding them until the end of hostilities after review in proceedings that are reasonable - not ersatz processes of dubious fairness. We did this in WWII and, where there were weaknesses, attempted to improve on those processes.
This is where the dissents miss the point, by there willingness to defer to an Executive and Legislature that was bent on lawlessness and covering lawlessness, they created the conditions for persons from a tradition that places a floor under human rights in war to react. That is what I think is the essence of what is going on here through the majority mucking up the carefully structured - conviction machine that was to provide ersatz process.
What will be interesting now is to see in this election year whether a great deal of heat will be thrown up about being "soft on terrorism" as the right attempts to get a new law like a "national security court" passed in Congress before the election. You can see this is going to be set up. The left will probably cave because they do not want to be seen as "soft on terror".
I only hope that there are persons in the left and the right who come together to stand with the older traditions that were thrown out during the past seven years to put in place processes of review that are meaningful for enemy combatants.
At the heart, the effort to put these people in places without law is made to fail by this decision. That is the fundamental error of those slick lawyers who tried to pull that off. And it has done an enormous disservice to our fighting persons protecting us and to the traditions of warrior culture of the United States. There is a term for these types in the military - REMF (Rear Echelon Mo Fo's). They really screwed it up so that a majority of the Supreme Court feels the need to step in like this. Shame on those boneheads.
E. Munaf – unanimous with Souter concurrence
I would also suggest that this case be read in conjunction with Munaf. While Munaf is a unanimous opinion, the Souter concurrence points out precisely what is in the mind of many members of the Court, to wit:
“The Court accordingly reserves judgment on an “extreme
case in which the Executive has determined that a
detainee [in United States custody] is likely to be tortured
but decides to transfer him anyway.” Ante, at 24–25. I
would add that nothing in today’s opinion should be read
as foreclosing relief for a citizen of the United States who
resists transfer, say, from the American military to a
foreign government for prosecution in a case of that sort,
and I would extend the caveat to a case in which the probability
of torture is well documented, even if the Executive
fails to acknowledge it. Although the Court rightly points
out that any likelihood of extreme mistreatment at the
receiving government’s hands is a proper matter for the
political branches to consider, see ante, at 23–24, if the
political branches did favor transfer it would be in order to
ask whether substantive due process bars the Government
from consigning its own people to torture. And although
the Court points out that habeas is aimed at securing
release, not protective detention, see ante, at 16, habeas
would not be the only avenue open to an objecting prisoner;
“where federally protected rights [are threatened], it
has been the rule from the beginning that courts will be
alert to adjust their remedies so as to grant the necessary
relief,” Bell v. Hood, 327 U. S. 678, 684 (1946). “
The case at hand is with regard to American citizens and so the concurrence refers only to that case. However, what is left sub silentio is the idea of a non-citizen being transferred by the United States and whether a habeas attack would reach that. A second case is the case of Americans giving someone to a second country who then gives the person on to a third country (or whatever length of daisy chain is involved).
What is excellent in Munaf is that Roberts does reject the formalist argument about the MNF not being US custody and looks at the substance of what is going on to recognize that the court would have habeas authority here. Secondly, it is significant that Hirota is limited significantly in this setting - something that was not a foretold conclusion - and by a unanimous court.
However, what is disturbing in the unanimous opinion is the deference to the political branches on the evaluation of the "torture-likelihood" of the foreign state to which someone is transferred. Roberts and those who do not join Souter's concurrence are clearly trying to leave open space to decide that they should defer on extraordinary renditions cases to the Executive's decision. Once again, the argument will be that deference should be given by the Roberts, Alito, Scalia and Thomas types while one would hope that a majority would look more to the substance of what was going on like they did in Boumedienne. I think a look at the substance would recognize situations where the Executive of our country was in cahoots with the Executive of another country to deny torture was happening and to in fact send someone to be tortured (liked Arar being sent from Kennedy airport with a list of questions to Syria). The Court may resist going into that foreign relations space, but if the Convention Against Torture and the Geneva Conventions are going to have meaning then I hope it will not punt on the political question on this too.
I think the voluntarily going to Iraq is a big thing here - they took the chance to go to the dance. The thing that is left is the involuntary situation and that is going to be more thorny. Of course the horrendous thing is that the amicus cites US reports but the representatives of the US do not - tells us the state of life over at State I guess.
On the "transfer" idea, I hope folks saw Bellinger today in Congress defending the extraordinary renditions - distinguishing Arar to Syria as not an extraordinary rendition but as an immigration matter. Way to play to prejudices John - makes me sick. You can see a summary over at Jurist.
What I think is going on here is that non-citizens rights are being brought closer to those traditionally seen only for citizens because the kind of distinction citizen/non-citizen that was a hallmark in the pre-Universal Declaration of Human Rights world in the 1940's are less possible when state action has such dramatic effect on so many kinds of people.
The national rights and human rights are being overlaid to state the obvious in a way that people of the 1940's generation like Jackson or before would have difficulty understanding intuitively.
I think many Americans today also have difficulty conceiving of the human rights strata as they are seen as inuring to the benefit of people present in a foreign land.
Americans are not educated in the fact that those human rights inure to their benefit and to those of non-citizens in the United States. Our Constitutional focus seems to blind many of us to that strata of rule of law protection.
It is an ignorance which many of our political leaders attempt to make us think is a virtue.
F. Who wins?
I think our courts need to comprehend that people around the world will respond to fair decisions by our courts, just like they respond negatively to torture being done by our government. People respond to our conduct and if we want to win their hearts and minds we have to do those things that are conduct that they like - while at the same time protecting ourselves and our allies from those who wish us ill will. That is the terrible task that these persons in government have in this world, but that's the job they want to take.
If we are going to be a city on the hill, we can not act like we are in some small southern town in the south back in 1951 where the effort is about "getting the (n* word)" as opposed to about being consistent with judicial forms.
That seems to be something that these good ole boys in our government have forgotten or wish not to remember just because these are foreigners.
Who wins? The United States of America wins by the Judiciary requiring true judicial forms and protecting people from the kind of arbitrary detention that the "enemy combatant" definition, the attempt to suspend the Geneva Conventions, the reinterpretation of torture, the extraordinary renditions, and all the rest of the panic and improvisation that has gone on the past six to seven years were trying to put in place.
I also insist that those proponents of the "national security court" pause before they start touting here this latest doodad in the continuation of the panic and improvisation. It is time for the tried and true in this war not more improvisation.
Here's the relevant passage (emphasis added):
I agree that "war on terror" is nonsensical, but the AUMF does in fact grant the president wide latitude to use military force against those he determines to be terrorists.
I would also like to know how the justices expect us to wage war on such ad hoc armies without taking prisoners and thus exposing ourselves to endless litigation. Should we take no prisoners? Could we not just execute all of them once we take them since they are out of uniform? This was the standard treatment in WWII. If our forces take a prisoner do they automatically get a trial or is there a grace period when we can hand them over to allies? Is the triggering event that they are brought to US soil? Is a Navy ship considered US soil? If so, does it matter whose territorial water it is in?
Will our soldiers have to Mirandize the brutes? If not then how do we know which procedural rules apply and which don't? Does anyone really expect any of this to happen? Will the Supreme Court provide an answer to all of these questions (or better questions that a lawyer would know to ask) or will we have to guess at them in the middle of a war until the next time the court makes a ruling? How can any country wage war this way?
Of course the court had to rule that the one thing which obviously cannot and will not happen is what must be done. They just couldn't restrain themselves. The only saving grace is that it will be a democratic congress and McCain or Obama who will have to deal with this mess. Bush should be able to play out the clock and hand everything over to those who so ardently wished for it.
Because those enemy soldiers in full uniforms are POW's and are entitled to the combatants privilege as long as they comply with the laws of war.
The terrorists or insurgents who do not fall under the definitions in Article 4 of the Third Geneva Conventions or fall under Article 5 of the Fourth Geneva Conventions will fall under Common Article 3 and be entitled to being tried before a regularly constituted tribunal. They can be tried for murder etc for their acts if they do not fit in Article 4 of the Third Geneva Convention.
The CSRT's and other ersatz processes are considered beneath our habeas standards by the majority. The only thing left is court-martial or civilian courts. That's why they end up in those civilian courts.
The POW types would have been in the court-martial process unless there was a situation where military commmissions were the only practicable means.
Best,
Ben
Compared to this, the AUMF looks like a software licensing agreement.
Still, the President seems to think we're 'at war' with terrorism: as far as I can tell, that makes captured terrorists POWs, as soldiers of a belligerent power we recognized. What we should have done was call them criminals and declare war on any country assisting them, but we didn't. As always, the Bush administration's heart was in the right place but its head was, to use an old Air Force expression, "up and locked."
JMHO, but I suspect that the Bush Administration deliberately has failed to capture bin Laden because it doesn't want to face this argument.
No, his discretion is much more limited than that. Force can only be used "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons". NB also the past tense verbs.
There are multiple problems with your question. Most of the prisoners at Gitmo were NOT "taken on the field of battle". A good many were "taken" far from any battlefield by people other than US forces. Some of them were actually sold to us. This means that we need some means of confirming that they actually are combatants; that's not a problem in the case of POWs taken in uniform by US forces.
We're not keeping these people as POWs and the Administration has refused to give them the rights of POWs. Instead, it proposes to punish them for criminal actions. The same can be done with POWs who violate the laws of war, but in either case there must be a trial.
The real problem here is not only that the plaintiffs are largely innocent of the crimes that Bush's lawyers have so far failed to charge them with. It's that the Bush administration has so violated the laws, statutory rights, constitutional rights, and rights under international military and human rights law, of these victims, that it's going to be very hard to get an honest court to ever convict them. Look at what happened to actual terrorists -- the Weathermen -- who were tried. The only one who served significant time in prison is the one who plea-bargained; the rest won their cases and were released due to innumerable violations of their rights by the FBI. Some of them teach at major universities today.
The whole reason these people are held in Guantanamo is because the Bush lawyers guessed that the Supreme Court would decide that "whatever the president does is legal" there. Now that the prisoners clearly have rights, they might as well be brought into the United States, and processed by ordinary courts.
In an honest country with an honest administration, the 300 people from Guantanamo could be transferred within two weeks to ordinary Federal cells in places like New Jersey. There they could meet with their lawyers, attempt to post bail or otherwise be released pending trial, have their status as captured warrior POWs confirmed or denied, see the evidence against them, attempt to refute any criminal charges against themselves (or get an honest judge to release them if they are imprisoned without charges for more than a few days), and then sue the government and the individuals involved in imprisoning them for years without cause and without redress. But this is not an honest country.
PS: I contributed significant funding to the lawyers who won this case.
I had some respect for McCain. When he stood up in the Senate to stop the Bush juggernaut to railroad the Guantanamo prisoners, I cheered. But a week later he joined the juggernaut with a law that declared, "Torturing prisoners is illegal and unconscionable -- but if we do it, nobody can hold us responsible". What was the quid pro quo there? Did the power brokers promise him a shot at the presidency?
A vote for Mr. Hanoi Hilton is a vote against the constitution.
The Court seems to have been heavily motivated by the fact that the detainees have been locked away for six years now in some cases, and that Guantanamo, whatever its sovereignty, is under stable U.S. control. Guantanamo has been extant long enough that it's no longer an emergency response to wartime dangers; rather, its entire reason for existing is to exploit a legal loophole in which the government thought it could avoid the legal restrictions (including the Constitution) that would apply on U.S. soil. The Court, rightly in my view, found that repugnant.
It may be that in the context of a habeas proceeding, the executive is entitled to great deference as to whether and under what circumstances detainees should be released. However, contrary to Justice Scalia, I see no reason why that deference cannot be applied by ordinary civilian courts. The rule of law is strengthened, and we are all safer, if it's possible for even the most monstrous criminals and terrorists to have a day in court.
You are out of your fucking mind. Seriously. KSM can post bail, and be released pending trial? You're out of your goddamn mind.
I contributed significant funding to the lawyers who won this case.
You bribed Justice Kennedy?
You should be glad, then--he'd surely join in the fight against same-sex marriage. That is, if he hasn't become a blobbering bowl of jelly as a result of Bush's torture regime.
If I see KSM on the streets, I'll kill him myself. That's a promise.
But they don't. Gong. Next question.
++++
I forgot to mention in my reply to advisoryopinion that Duncan did not apply only to citizens. The Hawaii military commissions tried not only citizens, and not only aliens, but enemy aliens (many tens of thousands of Japanese immigrants who were almost all loyal to America but were not allowed to apply for citizenship).
GC provides certain protections even to detainees who didn't comply with the laws of war. Bush has tried really hard to pretend otherwise.
No, we can not quibble over it. Congress declared it to be so. Congress explicitly chose to cease treating Al Qaeda as a criminal matter.
This was not done without thought. The tools provided by the criminal justice system were tried and found lacking. Declaring war was not a quibble, it was the near unanimous will of the people.
I happen to think that Congress ought to seriously rescinding that declaration. War is a powerful but blunt weapon and Al Qaeda seems to be considerably degraded. At this point, I think the country may be more endangered by the judicial degradation of executive wartime authority than Al Qaeda...
Really? The Constitution should rather bow to George W. Bush and the collective wisdom of those headed by Harry Reid and Nancy Pelosi? Somebody should go over to Bart's house, take his guns away, put him in a cell with his countryman Padilla and tell him we'll get back to him. And don't give him internet access. Thanks.
Of course Bart's reputation precedes him. But then we have the very serious Ilya Somin up above dropping this little doozy in reference to Milligan:
"Of course it still is?" What war, the war Boumedienne is engaged in? Is there any particular theater in which I might find U.S. military waging the war in which Boumedienne is engaged? And how's it going anyway? I notice we've been spending a lot of my tax money shooting people who appear to be more angry at Iraqis, Hamid Karzai and Ethiopia than they are at me, the Ugly American who doesn't worship the right Prophet.
Maybe Ilya's using "is" in the hyperlegal sense of a former President.
Quote them. Be specific. The whole purpose of the GC is to place at least a little bit of civilized behavior on the conduct of war. The threat of removing protection from combatants who violate the GC's constraints is its sole means of enforcement. If combatants who violate the laws of war are still entitled to GC protections, then the GC is impotent; any combatant from a non-signatory can violate the laws of war with impunity and there is absolutely nothing that any GC signatory can do about it -- thus defeating the entire purpose of the GC in the first place.
Now yesterday's decision, as I understand it, was not in any way based on the GC, so it's not really relevent to the current discussion. But if U.S. courts were truly going to interpret the GC as described above, then either this administration or the next would have an obligation to abrogate the treaty. In fact, it would have been unconstitutional, in the broad sense, to sign or ratify it in the first place.
You, sir, are an enemy of Western civilization. I'm sure Lynne Stewart would be proud of you.
I asked for the war in which Boumediene (with his fellow appellants) is engaged. It's not Afghanistan, there's no evidence they've ever been there and the U.S. governemtn doesn't claim they've been there. It can't possibly be Iraq. So where's the war, ejo? Ilya? Anyone?
Since the scope of the AUMF (2001) was never limited to "Afghanistan", it follows that Boumediene, et al., are accordingly implicated by the resolution -- as "persons" or members of "organizations . . . he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."
There's your war.
Really, the "it's not a war" argument doesn't wash. Informed critics should abandon that tack.
The GC has never, ever protected an American fighting east of Suez: not in war with Japan, Vietnam, Afghanistan, Iran, Iraq, China, the USSR, North Korea.
Seems to me it is about time to assess its utility.
The relevant text appears in all four Conventions. It is in Part 1, General Provisions. It stipulates that once a person is detained (i.e., any person currently "taking no active part in the hostilities"), that person "shall in all circumstances be treated humanely," and it is prohibited to commit "outrages upon personal dignity, in particular, humiliating and degrading treatment."
This applies to all detainees. There is no exception for so-called unlawful combatants, or persons who didn't comply with the laws of war. The term "unlawful combatant" appears nowhere in GC.
"If combatants who violate the laws of war are still entitled to GC protections, then the GC is impotent"
Wrong. "Combatants who violate the laws of war are still entitled to [certain] GC protections," but they are not entitled to all GC protections. In particular, they are not entitled to POW status, which entails special privileges that are not available to all detainees. In other words, you are wrong to claim that GC does not provide an incentive to obey the rules of war.
"thus defeating the entire purpose of the GC in the first place"
You are woefully ignorant about what GC actually says. A very common problem in your group.
"yesterday's decision, as I understand it, was not in any way based on the GC, so it's not really relevent to the current discussion"
It is relevant, because an important reason we got to this point is that Bush tried hard to trample on and circumvent GC.
"if U.S. courts were truly going to interpret the GC as described above, then either this administration or the next would have an obligation to abrogate the treaty"
If you think we should withdraw from GC, then lobby Congress to change the law. It would interest me if you could find a single member of Congress who claims we should do so.
harry: "it is about time to assess its [GC] utility"
If you think we should withdraw from GC, then lobby Congress to change the law.
I see very few people advocating that we withdraw from GC. I see a lot of people pretending it says something other than it says. And that's what Bush himself tried to do, until he was forced to acknowledge that GC applies to everyone, including the people he imprisoned.
Really, the 'it's a war' argument doesn't wash. It's hard to claim we're at war, given that Bush told us we should help the war effort by doing more shopping.
Your reply to that is to argue that 'it's not a war because Bush said to go shopping.'
Laughable. I'll just have to class you as an uninformed critic then. Shame.
If we don't let the terrorists win, the terrorists will have won.
Some of us actually live in the real world, where the president's current behavior is more relevant than cases from the 19th century.
Bush told us we're at war, and then acted like we're not, and told the country that we should act like we're not. If you can explain how that makes sense, you should. I'll be waiting patiently.
"I'll just have to class you as an uninformed critic then."
I'll just have to class you as someone who is inclined to duck a fair question.
Are you seriously claiming that 'it's not a war because the President said to go shopping' is a valid legal argument?
What's the case law for that then? Oh wait. You have none. Hilarity. Keep it up.
Try reading Bas v. Tingy, which answers precisely your question. Given a "partial war" which is nevertheless a war, the fact that the Nation is not in a state of total war - which would mandate drastic changes in economic behavior - doesn't mean that it "isn't a war." It remains a war.
I understand that you have no cites for your claim to the contrary. So you feel the need to make up frivolous BS.
That's fine. Just don't pretend it has any legal merit.
Some of us actually live in the real world
Why, Shame.
If you can explain how that makes sense, you should.
May I pass to the next question?
Actually, no, you go directly to shame.
Welcome to the world of elastic concepts, where you get to say whatever suits your needs in the moment. Next you'll be telling us about the meaning of "is."
You keep citing Bas v. Tingy, as if it's relevant. That case is about "a limited, partial, war." Is that your concept of the war we're in now? Really? Bush has described the GWOT as "a limited, partial, war?" Uh, no. He's described it repeatedly as the opposite of that. He has repeatedly compared it with WWII, which was clearly not "a limited, partial, war."
Bush's rhetoric (routinely describing the war in apocalyptic terms) is incongruent with his actions (requiring no sacrifice whatsoever from 99% of the country). You're having a lot of trouble grasping this very simple point.
"Try reading Bas v. Tingy, which answers precisely your question."
There's nothing in that case, or in your posts, which addresses the incongruity I just described.
"May I pass to the next question?"
Are you asking me if I have another question for you to evade? I don't want to confuse you while you're still busy evading this one.
Answer: it isn't.
Stop being obtuse.
You keep citing Bas v. Tingy, as if it's relevant. That case is about "a limited, partial, war." Is that your concept of the war we're in now?
Of course it's relevant. It's not a total war on the scale of WWII. Ergo, it's a partial war. And accordingly, a war. QED.
Bush's rhetoric (routinely describing the war in apocalyptic terms) is incongruent with his actions
Apocalyptic insofar as nuclear terrorism makes a successful terrorist strike "apocalyptic". He didn't say it was total war in the conventional sense, with a declaration of war and a large scale mobilization of soldiers under conventional arms on the scale seen in WWII.
You're being deliberately obtuse because you've painted yourself into a silly corner and can't explain how Bush's rhetoric has any legal relevance to the question of whether the United States is at war.
When challenged for a cite for the contrary proposition, you furtively evade the question. Shame?
There's nothing in that case, or in your posts, which addresses the incongruity I just described.
Your ignorance of the relevant case law and obstinate refusal to admit error prevents you from accepting the explanation.
Namely, that Bas v. Tingy, among other cases, stands for the proposition that authorizations of force by Congress are sufficient to constitute a state of war. Did Congress pass the AUMF? Yes. Ergo, there is a war. It is a "public war, on account of the public authority from which it emanates."
The Hamdi Court recognized this, concluding that "detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use."
As did the Fourth Circuit in Padilla v. Hanft, in deciding the question of "whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war."
3-0.
Are you asking me if I have another question for you to evade?
That's funny, since I've directly addressed your question on more than one occassion by providing the relevant cites. Your ignorance of the case law is not a shield behind which you can hide.
You on the other hand, have been continuously evading my request that you provide a cite for your contrary assertion that 'it is not a war'. You have yet to provide a single case on point.
Sounds like your rhetoric is incongruent with your actions? Oh, the shame.
A pity that you're such a time-waster that you've confused even yourself. Goodbye.
The extraordinary gap between Bush's rhetoric and his actions is relevant to the question of whether any of his claims should be taken seriously, including the claims he made in this case.
"it's a partial war"
Given that Bush has told us that virtually no sacrifice is required, it's hardly a war at all. Which means that when he claims a need for extraordinary wartime powers, he's full of it. Bush wants to claim we're at war, but he acts like we're not, and he encourages the rest of us to act like we're not.
"you furtively evade the question"
What question?
"obstinate refusal to admit error"
What error?
"The Hamdi Court recognized this"
Here's something else the Hamdi Court recognized: "It is a clearly established principle of the law of war that detention may last no longer than active hostilities." One of many problems with Bush's war is that he's defined it as essentially endless. And he even admitted at one point that it can never be won. Trouble is, permanent war is not what Congress had in mind when it passed AUMF.
You said:
"The fact that the decision challenges congressional power as well as executive power doesn't mean that it is necessarily wrong. On that question, I am divided in my own mind. The difficult question is whether habeas corpus applies to enemy combatants seized in operations abroad (I don't doubt that the Bush Administration was wrong to assert that it doesn't apply to US citizens accused of terrorist acts and captured in the US)."
I am rather disappointed that neither you or Orin have devoted anytime to actually offering any analysis of this landmark case and its merits (or lack thereof). I am used to getting some very good insights from this blog, but oddly the coverage has been very superficial.
What gives? Orin offers lavish quotes of Kennedy as his intellectual contribution (what is he doing, fawning over the majority's declarations?) and you suggest some deep but unexplained conflicts (be they intellectual or emotional, we are left to wonder).
Fess up. Both Roberts and Scalia made equally stinging dissents that, to a lay reader, seemed just (if not more) compelling. So far, we get no reflection from the bloggers on this...
So what gives???????